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QLD: Q&A Requirements for Body Corporate Committee Members

The LookUpStrata Team
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These questions have been received from QLD Lot Owners enquiring about the eligibility of body corporate committee members and who can attend committee meetings.

Table of Questions:

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Question: An owner recently moved to a retirement home. His son has power of attorney and lives in the unit. The son wants to be elected to the committee as secretary and treasurer. We do not mind electing the son as long as this is legal. We are self managed.

Answer: The owner will need to nominate the son to be a committee member.

An individual can be elected as a member of the committee provided that they are nominated by an individual who is a member of the body corporate and are either:

  1. a member of the individual’s family; or

  2. a person acting under the authority of a power of attorney given by the individual.

The owner will need to nominate the son to be a member of the committee. This nomination will be valid provided that (among other things):

  1. it is made prior to the end of the body corporate’s financial year; and

  2. his father does not owe a body corporate debt at the time the committee member positions are chosen.

Katya Prideaux Mahoneys E: kprideaux@mahoneys.com.au P: 07 3007 3753

This post appears in the November 2023 edition of The QLD Strata Magazine.

Question: An owner can nominate someone as their power of attorney. At the upcoming AGM, a power of attorney wishes to be nominated to represent the owner as a committee member. Does the owner nominate the power of attorney, or can the power of attorney self-nominate for a position on the committee?

Answer: A power of attorney can make a committee nomination on behalf of the owner.

A properly appointed power of Attorney (Attorney) can make a committee nomination on behalf of the owner.

Relevantly, section 19(1)(b) of the Accommodation Module (or section 18(1)(b) of the Standard Module) provides:

a nomination must be made by written notice and…if the nomination is from an owner of a lot nominating an individual other than the owner—

  1. must be signed and dated by the individual; and

  2. must be countersigned by the owner, or a person acting under the authority of the owner.

However, for the Attorney to be properly acting under the authority of the owner, the terms of the power of Attorney would need to extend to making such a nomination. If the power did not authorise the Attorney making such a nomination, it would not be validly made.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the September 2023 edition of The QLD Strata Magazine.

Question: At a recent budget meeting, the committee was unprepared and unprofessional. The meeting was moved at the last minute, and they seemed to throw numbers around. Is this usual?

On arrival at a recent budget meeting, the venue was closed, and at the scheduled time for the meeting, they decided to reconvene at another nearby location. Is this legal? The 1997 BCCM Act & 2020 Accommodation Module do not mention moving meetings.

The budget was not preprepared and the committee seemed to throw numbers around on the night. I’ve not seen this at any previous budget meeting. The committee seemed unprepared and unprofessional. Is this allowed?

Answer: Perhaps you could write to the committee with your concerns or table a motion to have an issue voted on. It’s your scheme.

Ideally, you would never change the venue of a meeting, but sometimes needs must, and if you want to assess the validity of that choice, you probably need to ask whether the body corporate made a reasonable decision in moving the venue or whether anyone was unreasonably disadvantaged from their doing so.

We don’t have all the information here, but it seems there was no attempt to mislead owners and that a practical decision was made on the spot in response to unforeseen circumstances. If so, it doesn’t sound unreasonable. Was anyone disadvantaged? Again, we don’t know, but it sounds as though the meeting went ahead, and committee members and owners were able to attend, so maybe not. From a body corporate perspective, notes on the need to change venue should be included in the minutes.

Regarding the budget meeting, there isn’t a set format for how these should be run. Well organised budget meetings usually involve presenting a draft budget, details of the financials for the previous year and a structure around how items are reviewed. I agree that the better the structure, the better the outcome, but different people have different approaches, and a structured meeting is not required.

Still, if you are unhappy with how the current committee does things, you can always look to take some action. Most likely, you could volunteer to join the committee and try to provide some of the structure you want to see. Maybe encourage other owners to join as well. When the proposed budget is presented to the AGM, you could vote against it if necessary.

Perhaps you could write to the committee with your concerns or table a motion to have an issue voted on. It’s your scheme. If you are unhappy with how it is operating, you need to participate in actioning the changes you want to see.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #654.

Question: Our chairperson has appointed his uncle as secretary of the committee. The uncle is not a lot owner. Is an uncle classified as a family member? Would this appointed member have voting rights on the committee?

Answer: An uncle is not automatically eligible to be nominated on the committee.

A properly appointed voting committee member will have a vote in a committee meeting regardless of whether they are an owner or not.

Family is defined in the regulation module to include the following persons—

  1. the individual’s spouse;

  2. each of the children of the individual or the individual’s spouse who is 18 years or more, including a step-child or an adopted child;

  3. each of the individual’s parents, including a step-parent;

  4. a brother or sister of the individual.

Accordingly, an uncle is not automatically eligible to be nominated on the committee.

However, a person acting under a power of attorney (PoA) of an owner is eligible to be on the committee. Accordingly, if the uncle committee member was nominated on the basis of a PoA they are eligible to be a committee member.

Further, if the owner of the lot was a company, the regulation module is quite flexible to allow the company to nominate a person to be on the committee.

The same rules apply to accommodation, standard and small scheme modules.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #633.

Question: I am Chairman/Secretary of a self managed body corporate committee. My wife has nominated for Treasurer. Do we each get to vote at the Committee level?

Answer: Generally, if you only have one lot then you can only nominate one co-owner to committee.

Generally, each lot can only nominate one eligible person. So if you only have one lot then you can only nominate one co-owner to committee.

If you have two lots, both co-owners can nominate and in that case you would both have a vote if appointed.

An exception to the general rule is if the minimum number of required committee members (three) has not been reached. In that case both co-owners can be on the committee. This has been effective since the regulation changes that came into effect in March 2021.

It’s not something I’ve seen in practice and would welcome any comments on how this is received in real life – instinctively I have a feeling that owners may not like this set-up, but then if they don’t like it they should nominate to the Committee.

Note that if you are under the Small Schemes Module, only one co-owner may be on the committee.

See the BCCM website for more info: Nominations and eligibility for body corporate committees.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #631.

Question: If the committee is required to operate in compliance with the Act, is it correct that the Act’s regulations are open to interpretation?

The Body Corporate and Community Management ACT 1997 SCHEDULE 1A(4) – Code of conduct for committee voting members requires that a committee voting member must take reasonable steps to ensure the members comply with this Act, including this code, in performing the member’s duties as a committee voting member. Given this, is it correct to say that the Act’s regulations are open to interpretation?

Answer: EVERY piece of legislation in Queensland, regardless of whether it is about strata, is open to interpretation.

Goodness, that’s a broad question.

Let me respond this way: EVERY piece of legislation in Queensland, regardless of whether it is about strata, is open to interpretation. That’s what lawyers exist for and then it is over to tribunals, courts and my former Office (the Commissioner’s Office) to offer more formal interpretation in the form of orders and judgments.

When it comes to a body corporate committee, you are correct they are meant to operate in compliance with legislation. Sometimes, what that means is not black and white. Actually, not sometimes, a lot of the time. When that happens, the best thing the committee can do is seek information to assist their interpretation. That can sometimes be found from the Commissioner’s Office, and when the interpretation is more complex in nature, the committee might require legal advice to provide that interpretation. It is, of course, open to ANYONE to interpret legislation. Unless, though, they have some expertise, knowledge or uncanny legislative understanding, you need to take that kind of interpretation with a grain of salt. People who interpret legislation without any sound basis for doing so are often referred to as bush lawyers – you want to avoid them at all costs if you can.

I suspect you have a specific issue that you are referring to, so perhaps you might want to put that forward and I or maybe someone else involved with LookUpStrata can hopefully help.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the December 2022 edition of The QLD Strata Magazine.

Question: Which Power of Attorney is appropriate when nominating for a vacant committee position? Can the General Power of Attorney form be used to nominate for the Committee as this is not a financial matter?

The BCCM Act does not define which Power of Attorney is appropriate when nominating for a vacant committee position.

The General Power of Attorney form states “Use this form if you want someone to act as your attorney for financial matters while you have the capacity”.

Can the General Power of Attorney form be used to nominate for the Committee as this is not a financial matter?

If the form can be used can it solely relate to Committee nomination and exclude financial matters?

Answer: Yes – the general power of attorney form can be used for nominating for a vacant committee position.

Yes – the general power of attorney form can be used for nominating for a vacant committee position.

Sections 8, 9 and 11 of the Powers of Attorney Act 1998 (Qld) relevantly provide that:

By a general power of attorney made under this Act, a person (principal) may…provide terms or information about exercising the power.

A principal may specify in a power of attorney a time when, circumstance in which, or occasion on which, the power is exercisable.

A general power of attorney made under this Act must be in the approved form.

Note— An approved form is a form approved by the chief executive under section 161—schedule 3 (Dictionary). Strict compliance with the form is not necessary and substantial compliance is sufficient—Acts Interpretation Act 1954, section 48A (Compliance with forms).

Accordingly, the general power of attorney form can be used for committee nominations and can limit the scope of powers of the attorney or otherwise exclude particular items. It should be noted though that a financial matter is broadly defined to include items such as a legal matter relating to the principal’s financial or property matters which may extend to acting as a committee member representative.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #606.

Question: One of our owners has passed away. Her partner has been acting as a Committee member and I understand he can stay on till our upcoming AGM. Can he nominate as a Committee Member at the AGM?

Answer: There may be some technical hoops to jump through to verify the facts you are looking for but in doing so you are protecting the body corporate so it is worth taking the time to do this.

At every AGM the existing committee is dissolved and a new one appointed. There are a series of qualifications for who can be a committee member. This starts with financial lot owners and then people they provide power of attorney to or members of their family – see this link for a detailed explanation: Eligibility for committee membership. If the individual meets those criteria then they can, of course be on the Committee. If not, no.

In this case, presumably the partner of the deceased has already met the standards as it seems they have already been appointed to the Committee. However, life isn’t always perfect. If there has been a death, there can also be some confusion. If the deceased person was the sole lot owner and the property is still in probate, you may need to check on who has authority over the lot. It may be the partner, but it is reasonable to ask from confirmation of this in the form of legal documents outlining how the estate is being managed. The nomination may depend on who has control of the estate and what authority they can give to the partner.

There may be some concern that asking for details like this in insensitive, but it shouldn’t be if it is handled in the right way. Owners can of course check ownership status via the roll at any time and that should be your start point. Then, people dealing with the legal outcome of a death should have documents to show that they have the status to act on behalf of the deceased’s estate – it’s normal to provide these. There may be some technical hoops to jump through to verify the facts you are looking for but in doing so you are protecting the body corporate so it is worth taking the time to do this.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #590.

Question: Can a partner of a lot owner be our body corporate representative on the Principal Body Corporate in our layered scheme?

The partner of a lot owner (who is also a committee member) is a mechanical engineer and suitably qualified to monitor the maintenance of plant and equipment in our 100 lot building. He enjoys doing this.

I am aware that he can be a member of our body corporate committee, which is a subsidiary body corporate in our layered scheme.

Can he be our body corporate representative on the Principal Body Corporate?

Answer: If a non-committee member is going to be the representative on a building management group you would first have to consider if this is permissible under the terms of the managing statement.

Usually, a scheme’s representative to a building management group is a member of the Committee who has taken on the extra responsibility. It’s a natural extension of the role of Committee member. If a scheme doesn’t appoint a representative directly, the Chair is the default representative.

If a non-committee member is going to be the representative on a building management group, you would first have to consider if this is permissible under the terms of the managing statement. If acceptable, you would then need to consider how the individual will be appointed to the position of representative. The managing statement might give some guidance on this, but if not then appointment could be via a general meeting or committee meeting.

After that, some structure needs to be considered for how that individual interacts with the committee and receives instruction from them on how to act. This is also the case with committee members who are building management representatives, but that person is likely to be part of an ongoing decision making matrix whereas the non-committee member has to cross some bridges to be part of that. The concern would be that the management group representative acts beyond the limit of their authority and commits the scheme to costs or actions without having had either direction from the committee or body corporate to support that. All things considered, it may be possible but it might be easier if the appointee was simply a member of the Committee.

For more information please see the government website on layered schemes: Running layered scheme

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the June 2022 edition of The QLD Strata Magazine.

Question: What are the rules around non-members attending a body corporate meeting? Can a non-member insist on attending a body corporate meeting? Can a non-member be restricted to attending only part of a body corporate meeting?

Answer: The person can only observe and speak only if invited by the committee.

A person who is not a member of the committee may only attend a meeting if:

  1. a majority of voting committee members who are present at the meeting invite the person; or

  2. the person is an owner of a lot (or an authorised representative of a lot owner) and written notice of the person’s intention to attend is provided to the Secretary no later than 24 hours before the meeting is held.

The committee may decide that the person must not be present for an item of business on the following matters:

  1. a breach of the by-laws for the community titles scheme;

  2. starting a proceeding, if the decision to start the proceeding is not a decision on a restricted issue for the committee;

  3. a proceeding against the body corporate; and

  4. a dispute between the body corporate and an owner/occupier, body corporate manager or caretaking service contractor.

The person must not be present for a vote taken by the committee on the item of business, or a discussion or vote taken by the committee about whether the person may be present.

The person can only observe and speak only if invited by the committee.

Alternatively, general meetings are open to all lot owners and their representatives (such as a person acting under a power of attorney, guardian, trustee, receiver or other representative authorised to act on the owner’s behalf).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #573.

Question: We are aware that family members can be elected onto the committee, however, is a defacto classed as a family member?

Our AGM (standard format plan) is coming up and a non-owner boyfriend of an owner has nominated himself or been nominated by his girlfriend (owner). She is calling him her “de-facto therefore family “ but he does not live in our complex. 

We are aware that family members can be elected onto the committee, however, is a defacto classed as a family member? Legally is he allowed to be on our Body corporate Committee?

Answer: Family includes spouse.

A non-owner can be nominated as a committee member if they:

  1. are family; or

  2. have been given a power of attorney by the owner.

Meaning of de facto partner

Family includes spouse and this issue was discussed in Q1 – [2015] QBCCMCmr 391 where the adjudicator relevantly provided:

[14] Section 36 and Schedule 1 of the Acts Interpretation Act 1954 provides the definition of the term “spouse”, which includes de facto partner and registered partner.

[16] Section 32DA (4) of the Acts Interpretation Act 1954 provides that “two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence”.

[17] Section 32DA of the Acts Interpretations Act 1954 states that when determining whether two person live together as a couple on a genuine domestic basis and who are not married to each other or related by family, the following circumstances may be taken into account, including, for example, any of the following circumstances—

  1. the nature and extent of their common residence;

  2. the length of their relationship;

  3. whether or not a sexual relationship exists or existed;

  4. the degree of financial dependence or interdependence, and any arrangement for financial support;

  5. their ownership, use and acquisition of property;

  6. the degree of mutual commitment to a shared life, including the care and support of each other;

  7. the care and support of children;

  8. the performance of household tasks;

  9. the reputation and public aspects of their relationship.

To determine the above, the committee is entitled to ask for further information (such as the above considerations) to determine if the nominee is a spouse.

Alternatively, if a power of attorney was given, it would avoid the issues of needing to determine whether the nominee is a spouse.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #568.

Question: I am the Chairperson in our 68 lot scheme. I recently started a new job as an assistant strata manager for the company that manages our scheme. Does this make me an associate of the body corporate and no longer able to be on the committee?

I was elected chairperson of a 68 lot accommodation module scheme where I own two lots. Four months after becoming Chairperson I started a new job as an assistant strata manager for the strata company that manages the scheme. I work in a different portfolio that doesn’t include my scheme and I disclosed this to the committee with no response. I believe my new employment makes me an “associate” of the body corporate manager and therefore am “ineligible to be a voting member” of the committee.

Can an “associate” of the body corporate manager hold an executive committee position? surely my profession would be a benefit to the body corporate as they are almost getting two body corporate managers for the price of one.

Answer: When a voting committee member is employed by the body corporate manager for their body corporate, that voting committee member immediately, and without anything further being required, ceases to be a voting committee member.

Experience on a body corporate committee can often lead to an interest in bodies corporate and how they operate (or how they are supposed to operate!). Committee members who’s interest is piqued, often look for ways to expand, or employ, their experience. One such way is through undertaking the online training course for committee members offered by the Commissioner for Body Corporate and Community Management: Queensland Government: Online body corporate training

Sometimes, as in this case, committee members seek employment with a Body Corporate Management firm. Unfortunately for those committee members, there are serious consequences that can arise from that employment. Particularly, as in this case, if the Body Corporate Management firm is the body corporate manager for the voting committee member’s body corporate.

One of the ways that a voting committee member’s term of office can end, is if they cease to be eligible to be a voting member of the committee. To be eligible to be a voting committee member, the person must not be a body corporate manager or an associate of a body corporate manager.

A body corporate manager is engaged by a body corporate to supply administrative services to the body corporate. An associate of a body corporate manager includes an employee of that body corporate manager.

Accordingly, when a voting committee member is employed by the body corporate manager for their body corporate, that voting committee member immediately, and without anything further being required, ceases to be a voting committee member.

While this may sound draconian, there are many good reasons for this rule. The most obvious is to avoid a conflict of interest between the interests of the body corporate and the interests of the body corporate manager. A voting committee member is like a ‘director’ of the body corporate ‘company’ and accordingly, is a fiduciary of the body corporate. Likewise, a body corporate manager is a fiduciary of the bodies corporate they act for, and all fiduciaries are under a legal obligation to avoid conflicts of interest.

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au P: 07 5406 1282

This post appears in Strata News #553.

Question: An investor lot owner who lets out his and other lot owner’s lots through his company has put himself forward for a committee position. Does the Act allow this?

We have an owner in our 120 lot strata community who owns 12 lots in the resort. They let these lots out through their own company, plus an additional 4 or 5 lots that are owned by others. Neither the Body Corporate nor the Caretaker have approved this business. This owner has now put themselves forward for a Committee position. I thought the BCCM Act did not allow this. Can you please clarify?

Answer: You can be on the committee if you rent your own lots. You cannot be on a committee if you operate a letting agent business.

You cannot be on a committee if you operate a letting agent business.

This is if a person conducts, subject to the Property Occupations Act 2014, the business of acting as the agent of owners of lots included in the scheme who choose to use the person’s services for securing, negotiating or enforcing (including collecting rents or tariffs for) leases or other occupancies of lots included in the scheme.

So, characterising what they do for the other 4 or 5 lots owners is the place to start. You can absolutely be on the committee if you rent your own lots. There is no prohibition on that.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #546.

Question: If a committee member was elected while unfinancial due to ‘sundry debt’, what effect does this have on any decisions during that time?

Two of the three executive committee members re-election in 2020 had a Sundry Debt to the Body Corporate, making them unfinancial at the time of the AGM.

As their election should have been made invalid, what effect, if any, does this have on any motion votings during the year that they as treasurer and secretary participated in?

Answer: The existence of a “Body Corporate Debt” is what makes a committee member ineligible.

It is important to determine what type of debt the “sundry debt” is. The existence of a “Body Corporate Debt” is what makes a committee member ineligible. Body Corporate Debt is defined to mean one of the following amounts owed by a lot

owner to the body corporate—

  1. a contribution or an instalment of a contribution;

  2. a penalty for not paying a contribution or an instalment of a contribution by the date for payment;

  3. another amount associated with the ownership of a lot.

Given the debt is being referred to as a “sundry debt” I presume (a) and (b) of the above are not applicable. (c) has been given a limited interpretation by adjudicators as it must relate to the ownership of the lot.

For example, if the sundry debt is related to payment for an exclusive use right, then the sundry debt would impact on the committee member’s eligibility. However, if it were related to something unrelated to the ownership of the lot, such as the recovery of damages to the common property, then it would not have any impact on the owner’s eligibility.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #531.

Question: If a committee repeatedly fails to implement motions passed by the body corporate at AGMs, can owners vote to remove ALL committee members?

If a committee repeatedly fails to implement motions passed by the body corporate at AGMs (including motions proposed by the Committee), can owners vote, at an EGM, in support of a motion to remove ALL committee members?

Answer: Yes – although any committee member can be removed for any reason

Yes – although any committee member can be removed for any reason – there does not need to be justification to do so.

If the intent was to have the motions that were passed implemented, there may be a more effective outcome by seeking to require the committee to implement the motion by seeking an order to do so.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #507.

Question: Our Body Corporate Committee chairperson has failed to vote on all VOCM’s in the last 12 Months (i.e. at least 5). Can they be removed from the committee? What other action can Body Corporate members take?

Answer: Any Committee member can be voted off the committee at a general meeting of owners

Any Committee member can be voted off the committee via the way they came in – at a general meeting of owners. An EGM can be called and the motion for removal proposed. You don’t have to list reasons for the request, but citing a failure to participate in the body corporate process would seem reasonable. For their part, the Chair may want to provide reasons why they didn’t vote. 

Generally, it is best practice for all committee members to vote on VOCs – they have volunteered to be part of the authority running the scheme and VOCs are a part of that. If a committee member disagrees with a proposal they can vote no or abstain.

It doesn’t say specifically, but I think this question is asking about the section of the legislation that allows for a committee member to be removed if they don’t vote in two consecutive meetings. Here, the stipulation is that a member’s position becomes vacant if they are not present personally or by proxy at 2 consecutive committee meetings without the committee’s leave. However, as per it’s title, a VOC is specifically a ‘vote outside a committee meeting’ so we do not believe that non-participation in this process activates this clause. 

or further information Mahoney’s wrote a good blog on the issue of removing Committee members last year.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the July 2021 edition of The QLD Strata Magazine.

Question: With the new legislation, is it possible for joint owners of one unit to be on the committee? Previously, you could get someone else in the complex to nominate you. They effectively gave you the right to take the option to become a committee member. Is this still the case?

Answer: The short answer is yes. It is the same.

There’s a little bit of confusion around how this works. The short answer is yes. It is the same.

That old rule about needing someone else to nominate you to go on the committee really related to when there was no one else, or when you’re trying to get committee members onto the committee, because there was a section in there for co-owners that said only one co-owner can be on the committee, even if those co-owners owned multiple lots.

The only change that’s happened is more flexibility to allow that co-owner to get on the committee. It’s not necessarily a restriction. It’s open it up more than anything else. The only change is, if there is a co-owner, those co-owners that own more than one lot, they can both nominate individually and they don’t need that other person to nominate them. But the other person can still nominate them if that’s how they want to play it out.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: Can someone who doesn’t own a unit in the complex be a committee member on the complex’s body corporate committee?

Answer: There are a number of circumstances where a non-owner can be a committee member.

Yes – there are a number of circumstances where a non-owner can be a committee member.

The body corporate manager and caretaking service contractor are non-voting committee members as a result of their engagement with the body corporate.

Further, section 10 of the Standard Module sets out a number of circumstances where a non-owner can be a voting committee member. As some examples, this includes a family member of the lot owner, person appointed as a power of attorney by the lot owner or nominee of a company lot owner.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #457.

Question: When raising the motion to remove the committee member at a meeting, can they vote in favour of themselves or are they not allowed to vote on this.

Answer: As the meeting is being considered at general meeting, all lot owners are entitled to cast a vote.

As the meeting is being considered at general meeting, all lot owners are entitled to cast a vote.

In Paloma [2010] QBCCMCmr 129 the adjudicator relevantly provided:

“In this jurisdiction, it is only committee members who are specifically prohibited from exercising their vote subject to a conflict of interest at committee level. Owners are not subject to any specific provisions regarding a conflict of interest when voting in general meetings or submitting motions for general meetings. However, decisions of bodies corporate are subject to an overriding restriction in that the body corporate must act reasonably in carrying out its functions and administering body corporate assets.”

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #427.

Question: The developer of our new building would like to pass the committee back to owners before his first year is up. Should we be concerned?

Our titles came through on the 20th of January 2020. Our body corp from that time on is the developer as he holds most of our proxies for the first year.

At what point can he bow out as the body corporate, as it appears as if he now wants to pass the baton onto others?

Is he trying to remove himself from any extra costs incurred during his reign as developer and body corp?

I would have thought that he could not step down till January 2021?

What sort of financial position would he have to leave us in?

We have a total of 21 units and 2 townhouses within our scheme, can you advise how many members we are able to have on our future body corporate?

Answer: They probably just have nothing more to do and are handing control back to the body corporate members.

What developers normally do is retain control for 12 months post registration to address anything they might have disclosed to buyers. That is a right – not an obligation.

If they choose not to exercise it, I wouldn’t read anything into it. They probably just have nothing more to do and are handing control back to the body corporate members. So I would work with your body corporate manager to now get the control of the body corporate into a committee elected by owners and go from there!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #372.

Question: We’ve been dealing with a large number of fire and waterproofing defects. The developer and builder, who are both lot owners, are looking to take over the Body Corporate Committee. Is this not a conflict of interest?

I am on our committee and we have spent the past 12 months going through the QBCC with more that 160 fire and safety and waterproofing defects. The former Chairperson who is the wife of the developer and former Treasurer who is the Builder of the complex failed to get the annual fire and safety audit.

Now that we are about to go and lodge with QCAT, both the developer and builder who are lot owners in the building are looking to take over the Body Corporate Committee. Is this not a conflict of interest?

Answer: An alleged conflict of interest does not prevent someone from nominating for or being voted onto the committee.

The only provisions for a ‘conflict of interest’ under body corporate legislation are for committee members. An alleged conflict of interest does not prevent someone from nominating for or being voted onto the committee. There is also no conflict of interest at a general meeting.

You say people are trying to ‘take over’ the committee. People can either get elected or appointed to a committee. They can’t just unilaterally assume control. Just like in politics, voting in a body corporate is a numbers game and if someone has the numbers, they can be voted onto the committee.

I should also add there are no prohibitions on lobbying. Someone can lobby others to vote for them but of course, it works in reverse too and someone can lobby others to NOT vote for someone. In either case, always be careful how the lobbying is dong and avoid statements which might be defamatory.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #368.

Question: The person who owns the management rights in our complex is also on our Body Corporate committee. Is this allowed as they are causing a multitude of trouble?

Answer: The Accommodation Module provides that a caretaking service contractor is a non-voting member of the committee.

It’s not whether they are allowed to be on the committee or not. They are on the committee, automatically. Section 13 of the Accommodation Module provides that a caretaking service contractor – the technical term for a management rights holder – is a non-voting member of the committee.

13 Non-voting members of committee [SM, s 12]

  1. The following persons are, without further election or appointment, members of the committee—
    1. a body corporate manager for the community titles scheme;

    2. a caretaking service contractor for the scheme.
  2. A person who is a member under this section is a “non-voting member” of the committee.

  3. Subsection (2) applies even if the person is a member of the body corporate.

  4. A non-voting member is not entitled to vote at a meeting of the committee.

As the name suggests, a non-voting member is not entitled to vote at a meeting of the committee. I’m only referring here to committee meetings. If the caretaker owns a lot in the scheme, which they typically do, then they would be entitled to vote at a general meeting, with certain qualifiers and conditions.

If there is ‘trouble’ as you say, your focus shouldn’t be whether someone is on the committee or not or if they’re entitled to be there or to vote. Your focus should be on what the source of the apparent ‘trouble’ is, because that determines what you can do about it.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #361.

Question: I have a few questions relating to the QLD Nomination for Body Corporate Committee Form, where the nominator is a Pty Ltd Company As A Trust.

I have a few questions relating to the QLD Nomination for Committee Form. The nominator for a position on the body corporate committee is a Pty Ltd Company As A Trust registered in NSW. The Body Corporate is in Qld.

Is a common seal required on the nomination form for a representative for the committee?

Can the person nominated as a representative sign the form both as the nominator and the nominee?

Does that nomination for a representative for committee qualify that nominee to vote at AGM? Note: There is no representative entered on the Owner’s role, just the company’s name.

Answer: Your questions are more or less answered by section 83 of the Standard Module and equivalent provisions of other Modules.

Your questions are more or less answered by section 83: Meaning of voter for general meeting of the Standard Module and equivalent provisions of other Modules.

For example, s83(6) provides that the notice of nomination must ‘be given under the seal of the nominating entity or in another way permitted under the Corporations Act…’ or ‘by a person acting under the authority of a power of attorney from the nominating entity…’.

  1. The notice of nomination must—
    1. be given—
      1. under the seal of the nominating entity or in another way permitted under the Corporations Act, section 127; or

      2. by a person acting under the authority of a power of attorney from the nominating entity, a copy of whose power of attorney is also given to the secretary; and

    2. advise the residential or business address, and address for service (if different from the residential or business address), of each nominee.

If the legislation is silent on your specific queries, you may need to seek legal advice for further clarification.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #346.

Question: Can a person who owns a hairdressing salon in the foyer of our building be a Body Corporate Committee member?

Can a person who owns a hairdressing salon in the foyer of our building be voted onto the Body Corporate Committee?

She doesn’t live in the building or own a unit here, just the shop.

Answer: Only owners of lots (not tenants) are eligible to be on the committee.

Only owners of lots (not tenants) are eligible to be on the committee.

However, if the owner of the hairdressing shop is a family member of another owner, has the power of attorney of another lot owner or the nominee of another lot owned by a corporation, they could be on the committee if they are nominated on behalf of that other lot.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #257.

Question: Are there requirements for eligibility for body corporate committee members? Do they have to be Australian citizens OR reside in Queensland?

I’m wondering if a “Committee“ member of our body corporate is allowed to hold their position. This member lives in New Zealand and spends a few months of the year in their unit in Queensland, and the rest of the time back home in New Zealand.

Also, another owner lives on the “Road“, travelling in a caravan. They use a NSW address.

I read somewhere that you must be an Australian Citizen, and be a resident on the Queensland electoral roll or be within 65 KM of the Queensland border to hold a committee position? Is this correct? I am unable to locate the resource again.

What are the rules?

Answer: There are no requirements within the legislation for body corporate committee members in relation to residential or citizenship status.

There are no requirements within the legislation in relation to residential or citizenship status. The Body Corporate and Community Management (Standard Module) states that:

  1. A person is eligible to be a voting member of the committee if the person is an individual nominated for membership of the committee by a member of the body corporate (the nominating entity) and is also—
    1. a member of the body corporate; or

    2. a person of the following category—
      1. if the nominating entity is an individual—
        1. a member of the individual’s family; or

        2. a person acting under the authority of a power of attorney given by the individual;

      2. if the nominating entity is a corporation — a director, secretary or another nominee of the corporation;

      3. if the nominating entity is the body corporate for a subsidiary scheme in a layered arrangement of community titles schemes — a representative of the subsidiary scheme.

There are many schemes that do not have owners who reside either in the same state or even the same country as the scheme. With the technology that is available today, there is generally no need to have committee members onsite. Some of the most involved and valuable committee members I have worked with have resided overseas or have travelled regularly and have kept their finger on the pulse by keeping in regular contact with their Strata Manager, Onsite Manager and other Committee Members. It is possible to hold committee meetings entirely by electronic means using tools such as Skype, Online Voting programs, email, telephone etc.

As long as the Committee member(s) in question meet the requirements of the Code Of Conduct, ie:

There is no reason why the cannot hold a voting position on the Committee.

If your query relates more to how to engage with these owners or removing Committee Members who are not meeting their obligations (regardless of where they reside) we can also provide further information in relation to this.

This post appears in Strata News #115.

Question: New body corporate committee members are needed. How do we elect new members? Should it go to a general meeting?

If a committee has an elected committee of 4 and 2 resign, can the remaining 2 body corporate committee members elect new committee members? There are 26 units on the site.

If not, should it go to a general meeting?

Answer: Yes, the Committee can elect the two new members to fill these vacancies.

In this instance, yes, the Committee can elect the two new members to fill these vacancies.

Providing that the total number has not fallen below a quorum (being half of the voting members) then the remaining committee members can appoint the new Committee Member(s). They may still, however, chose to call a General Meeting if they do not want to appoint the body corporate committee members themselves.

If the number of voting members had fallen below a quorum then remaining body corporate committee members would then be required to call a General Meeting to fill the positions.

Amanda Hoy

This post appears in Strata News #116.

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